Impact of The Constitution On Intestate Succession

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Table of Contents:
Table of Contents
Table of Contents:.................................................................................................................................1
Aim and Scope, defining the topic:........................................................................................................2
Understanding of the topic:...................................................................................................................2
Own perspective and insight:................................................................................................................3
Bibliography:.........................................................................................................................................4
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Aim and Scope, defining the topic:

It is well known that the South African constitution protects the rights of citizens of the country to
their interests in their property and how it is distributed after death. Intestate succession which is
governed by the Intestate Succession Act 81 of 1987(“the Act”) according to (Paleker, Wood-Bodley,
& Jamneck, 2012) applies when a descendant passes away without a will and the rules of intestate
succession come into play to determine the estate distribution amongst the beneficiaries, however,
the extent to which the law of succession fosters the concept ubuntu is debatable.
Understanding of the topic:

The South African Constitution of 1996 is the supreme law of the land, and all other laws must be
consistent with it. The Constitution preserves human dignity, equality, and freedom, which are
fundamental to our society. As such, the law of succession must be interpreted and applied in a
manner that is consistent with these values. In particular, the Constitution states the right to
equality and non-discrimination, which means that all heirs have the right to an equal share of the
deceased’s estate, regardless of gender, race, or faith. This principle is preserved in section 8 (1) of
the Act which states that “the intestate heirs of a deceased are entitled to an equal share of the
estate.” This reflects the equality principle found in the Constitution and ensures that no person is
disadvantaged in terms of their right to inherit the estate of a deceased person.
The Constitution also preserves the right to dignity. This means that the law of succession must be
applied in a manner that respects the feelings and wishes of the deceased. This is achieved through
the concept of “testamentary freedom” which is the right of a person to dispose of their estate as
they wish. This principle is preserved in section 8 (2) of the Act, which provides that “the intestate
heirs of a deceased are entitled to inherit in accordance with the wishes of the deceased, to the
extent that such wishes are in accordance with the law.” This provision ensures that the wishes of
the deceased are respected and considered when distributing the estate.
The concept of ubuntu is deeply rooted in the law of intestate succession. The law of succession
fosters the concept of ubuntu, which is an African philosophy that places emphasis on “being
through other people” (p. 336).In the context of the law of succession, the concept of ubuntu is that
the property should be distributed in a way that benefits the entire community, rather than just one
individual. The law recognizes the importance of family relationships and places a great deal of
emphasis on the preservation of these relationships. It recognizes that the family is a fundamental
institution in society and that the interests of family members should be protected. The law of
succession seeks to preserve family relationships by ensuring that the estate is distributed among
the closest surviving relatives of the deceased. The law of intestate succession has been influenced
by the concept of ubuntu, which recognizes the importance of interdependence and respect for
others. In the concept of succession, ubuntu is reflected in the recognition of the surviving spouse,
parents, and children as the primary beneficiaries of the estate. By prioritizing the interests of the
close relatives of the deceased, the law of succession fosters a sense of interconnectedness which is
a hallmark of Ubuntu.
However, there are some aspects of the law of succession that may be seen as conflicting with the
concept of ubuntu. For instance, the law does not consider the needs of the broader community,
even though this is an essential aspect of ubuntu. The law only considers the interests of the
surviving family members and does not recognize the needs of the other dependents, such as
extended family members, friends, or charitable organizations. This suggests the law of succession
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may be more focused on the preservation of the family as an institution than on the promotion of
the broader community’s interests.
Own perspective and insight:

In conclusion, the concept of the constitution on intestate succession in South Africa is deeply
rooted in the concept of ubuntu. The law recognizes the importance of family relationships and
seeks to preserve them by ensuring that the estate is distributed among the closest surviving
relatives of the deceased. While the law of succession has made strides in fostering the sense of
interconnectedness that is a hallmark of ubuntu, it still has some way to go before it can be said that
it fully embraces the principles of ubuntu and the relevant cases to prove this is:
(Radermeyer v Minister of Home Affairs, 1999)
(Bhe and others v Khayelitsha Magistrate and Others)

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Bibliography:
Bhe and others v Khayelitsha Magistrate and Others, SAFL11 (Higher Court).
Mugumbate, & A., J. &. (2013, August 01). www.google.co.za. Retrieved from www.gooogle.co.za:
https://www.ajol.info
Mugumbate, & A., J. &. (2013, August 1). www.gooogle.co.za. Retrieved from www.gooogle.co.za:
https://www.ajol.info
Paleker, M., Wood-Bodley, M., & Jamneck, J. (2012). The Law of Sucession In South Africa . In The
Law Of Succession In South Africa. (p. 336). Southern Africa : Oxford University Press, 2nd
edition .
Radermeyer v Minister of Home Affairs, 107 (Higher court 1999).

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1

Aim and Scope, defining the topic:

Understanding of the topic:

Own perspective and insight:

(Radermeyer v Minister of Home Affairs, 1999)

(Bhe and others v Khayelitsha Magistrate and Others)

Radermeyer v Minister of Home Affairs, 107 (Higher court 1999).

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